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No public interest defence? 'Info Bill is anti-democratic'

The ANC's refusal to allow a public interest defence in the Protection of Information Bill has been denounced as "anti-democratic".

The ANC’s refusal to allow a public interest defence in the Protection of Information Bill has been slammed as “anti-democratic” and “an assault on whistleblowers”.

On Wednesday, the ANC ruled out writing a public interest defence into the Protection of Information Bill saying that to do so “would place journalists above the law”.

ANC MP Luwellyn Landers rejected the argument that allowing somebody who revealed a state secret to argue in court that he had done so for the public good would protect whistleblowers, promote transparency and fight corruption.

Instead, he said, the proposal plainly sought to protect the media from being sent to prison for publishing classified information.

“Let’s be honest, essentially what the opposition is saying is that journalists who come into possession of classified information should be allowed to publish it.”

He said the Bill did not place an “unjustifiable constraint on media freedom or freedom of expression” by forcing journalists to hand secret files to the police, then request the minister to declassify them if they felt the information belonged in the public domain.

“It merely makes the media subject to the rule of law.”

‘Attack on whistleblowers’
The Mail & Guardian‘s editor-in-chief Nic Dawes said a public interest defence would protect not just journalists, but anyone who exposed serious misconduct such human rights violations, corruption and mismanagement.

The lack of a public interest defence “will affect not just journalists but members of civil society, academics, lawyers and all whistleblowers”, he added. “Without it, the Protection of Information Bill is not just undemocratic but indeed antidemocratic.”

Dale McKinley, the spokesperson for the Right2Know campaign, said the civil society umbrella body was not “surprised by the ANC’s decision” to reject a public interest defence.

He said the ANC had always rejected the idea, despite facing serious opposition over its position in the past year. McKinley said that while opposition parties had reignited the debate over the public interest defence in Parliament on Wednesday, the body had not thought that the ANC was going to renounce its previous position.

National Press Club chairperson Yusuf Abramjee said media and civil society would “fight the Bill tooth and nail”. He called the ANC’s decision “very disappointing”.

The South African National Editors’ Forum (Sanef) acting chairperson on media freedom Raymond Louw said the lack of such a defence was going to make life “extraordinarily difficult for journalists if they came into contact with classified information” It was an “attack on whistleblowers”, he said.

Louw added that “when a person is charged with possession or publication of classified information, civil rights groups and the media would then have to approach the Constitutional Court to test the constitutionality of the Bill”.

Rhodes School of journalism Professor Jane Duncan tweeted: “Implications of a public interest defence being refused are dire for academic freedom. Bye bye research on security cluster.”

Lopsided
After a heated debate, ANC members said a Democratic Alliance proposal to protect publication if the information was classified to conceal wrongdoing was tantamount to legalising theft.

DA MP Dene Smuts retorted: “We are talking about stealing. Theft and corruption is a big problem in our country and it is the duty of any democrat to expose it.”

She said that a public interest defence did not amount to legalising the exposure of legitimate sate secrets.

“It is just a defence. If they get it wrong they still go to jail.”

‘Trust SA’s judges’
The Inkatha Freedom Party’s Mario Oriani-Ambrosini urged the ANC to allow the defence and to trust the country’s judges to decide whether it applied.

“A judge is competent to weigh whether the public interest is better served through disclosure or through secrecy.”

The chairperson of the committee drafting the Bill , Cecil Burgess, deemed the opposition argument “lopsided” and said he believed that debate on the subject was exhausted.

Civil society groups have said the exclusion of a public interest defence renders the Bill unconstitutional and ripe for legal challenge.

Along with the Congress of South African Trade Unions, they reject the ANC’s contention that as the Bill stands it offers sufficient protection for whistleblowers who expose wrongdoing covered up by classification.—Sapa